Open letter to Law Minister Jana Krishnamurthi about the
forthcoming trial of Abdul Rehman Geelani and three others

8 July 2002

Dear Minister,

Amnesty International is concerned that, in the forthcoming
trial of four persons who are charged with various crimes relating to the attack
on the Indian parliament on 13 December 2001, international standards for fair
trial which India is bound to observe as a state party to the International
Covenant on Civil and Political Rights (ICCPR) may be disregarded. Pre-trial
proceedings appear to have been flawed and the scheduling of hearings of the
forthcoming trial, due to commence on 8 July 2002, indicates that the speed at
which the trial is to be conducted may violate the defendants=
right to present a full defence. Moreover the special legislation under which
the accused are to be tried is flawed and likely to facilitate an unfair trial.
Amnesty International is particularly concerned that the accused could be
sentenced to death if found guilty of the crimes with which they are charged.
Amnesty International opposes the death penalty in all cases as a violation of
the right to life.

While acknowledging the obligation of states to uphold law
and order and to protect their populations from violent criminal acts such as
the attack on the Indian parliament on 13 December 2001, Amnesty International
is concerned that in this context human rights protection is all too often
relegated to second place. United Nations High Commissioner for Human Rights
Mary Robinson said on 20 March 2002: "I am particularly concerned that
counter-terrorism strategies pursued after September 11 [2001] have sometimes
undermined efforts to enhance respect for human rights."

Amnesty International is concerned about the right to a fair
trial of all four accused, Mohammad Afzal, Shaukat Hussain and his wife Najot
Sandhu and Abdul Rehman Geelani. Under international human rights law, as under
the Constitution of India, the right to a fair trial applies to all accused
persons; those accused of violent political acts must not be discriminated
against and have the right to enjoy equality before law and equal protection of
law.

Amnesty International in this letter concentrates on the case
of Abdul Rehman Geelani whose case details are given in the appendix, to
indicate its concerns about the forthcoming trial which may affect the rights of
all the four accused to a fair trial; his case shows that those working in the
criminal justice system appear willing to suspend even minimum safeguards
available under special anti-terrorist legislation which is itself grossly
defective. Amnesty International fears that the trial due to start on 8 July
2002, apparently one of the first in India under the Prevention of Terrorism Act
2002 (POTA), will have a signal effect for scores of other cases being brought
under POTA in India and believes that it should therefore be subjected to very
careful scrutiny. First indications in the present case are very negative as
pre-trial procedures have already involved a range of abuses.

Amnesty International=
s concerns relate to:

1. Unfair pre-trial procedures

Amnesty International believes that POTA in several of its
provisions violates international standards for fair trial and is particularly
concerned that even the minimal safeguards contained in POTA have not been
implemented in the case of Abdul Rehman Geelani.

POTA provides in section 52 for the preparation of a custody
memo to record relevant dates and times of custody. However, the official record
of arrest of Abdul Rehman Geelani is faulty; it records the date of arrest as 15
December 2001 he was arrested a day earlier and taken to an undeclared place of
detention where police allegedly subjected him to torture including beating and
hanging upside down and verbal abuse. Amnesty International fears that Geelani=
s right not to be subjected to torture was violated, and this was facilitated by
his being held in incommunicado detention in an unauthorized place of detention.
The safeguard of a custody record to ensure proper treatment of prisoners
provided by POTA was violated.

Section 32(4) of POTA provides that a detainee is to be
brought before a magistrate within 48 hours of the confession having been made.
Under section 32(5) the detainee can report to the magistrate if he or she has
been subjected to torture during interrogation in police custody. This is
important as section 32 of POTA allows confessions to be admitted as evidence in
court.

This important safeguard was disregarded in the pre-trial
process. Abdul Rehman Geelani stated that he, along with the three other
accused, was brought before the Additional Chief Metropolitan Magistrate (ACMM)
on 22 December 2001 who asked the police inspector present if the statement of
the accused had been recorded. He did not give an opportunity to the accused to
report if they had been tortured. The presence of police would in itself been
sufficiently intimidating to make the accused hesitate to report any
ill-treatment they may have been subjected to. The charge sheet incorrectly
reports this significant omission when it states that Geelani was brought alone,
in the absence of any police officer, before the ACMM and stated before the ACMM
that he had not been tortured when his statement was recorded by police (see
case details below).

Abdul Rehman Geelani filed an application to the Additional
Sessions Judge on 31 May 2002 requesting that the discrepancies contained in the
charge sheet be clarified before charges were framed. This application was
placed on record but was not taken into account before charges were framed on 4
June 2002.

There is little apparently evidence to link Abdul Rehman
Geelani to the offence; the charge sheet merely states that his phone number was
found on the mobile phone of the main accused and that in a telephone
conversation recorded on 14 December 2001, Abdul Rehman Geelani was heard to
comment positively on the attack on the Indian parliament. These are not
recognizable criminal offences under Indian law. One of the other accused,
Mohammad Afzal, stated at a press conference that Abdul Rehman Geelani had not
been involved in the offences. Human rights activists in India have publicly
expressed their concern that the available evidence does not warrant the serious
criminal charges brought against Geelani and a trial under anti-terrorist
legislation.

Amnesty International is concerned that media coverage of the
arrests and concerning the person of Abdul Rehman Geelani during the pre-trial
period has been extremely prejudicial to his case and that the Government of
India has not taken any steps to halt this. The media coverage which largely
presented Geelani as guilty before the trial had even begun, must be presumed to
impact negatively on Abdul Rehman Geelani=
s right to be presumed innocent as required by Article 14(2) of the ICCPR and on
the impartiality of the POTA court which is to hear the case from 8 July 2002.
Reports have alleged that Abdul Rehman Geelani had bought a house in New Delhi
with unaccounted for money (Hindustan Times, 17 December 2001),
indoctrinated students in >
terrorism= (Hindustan Times, The
Hindu, both 17 December 2001) and participated in activities of the now
banned Students Islamic Movement of India (Times of India, 20 December
2001); human rights activists in India have pointed out that these allegations
are untrue. Moreover reports appeared in the media quoting from Geelani=
s confessional statement which imply his guilt despite the fact that he did not
make a confessional statement (Hindustan Times, 21 December, Sunday
Times, 23 December 2001).

On 21 December 2001, police paraded the four accused before
the press. Subsequently the press conference was broadcast on national
television; during the press conference only accused Mohammad Afzal was allowed
to speak; he reportedly admitted to the attack on the parliament. The other
accused were not allowed to speak nor was the press permitted to question any of
the accused. Mohammad Afzal during the press conference reportedly declared that
Abdul Rehman Geelani had not been involved in the attack. On 2 July 2002,
Mohammad Afzal filed a statement in court withdrawing his confessional statement
which he declared had been written by the Deputy Commissioner of Police.

Amnesty International believes that parading accused before
national media during which they are made to incriminate themselves violates
their right to be presumed innocent until convicted according to law in the
course of fair proceedings and their right not to be compelled to testify
against themselves or to confess guilt. These rights are provided in Articles
14(2) and 14 (3) (g) of the ICCPR respectively.

2. Restriction of the right to present a full defence

Amnesty International fears that the hearings will be
conducted in great haste. There are some 180 witnesses to be examined and the
schedule presented to the lawyers of the defendants lists 10 witnesses to be
heard on 8 July 2002, 11 witnesses on the next day and so on, with all witnesses
to be heard on consecutive days within two weeks. Such speed is unprecedented in
judicial proceedings in India and may seriously violate the right of the
defendants to present a full defence and adequately and fully cross examine
prosecution witnesses, as required by Article 14(3)(e) of the ICCPR to which
India is a state party.

3. Conditions of detention

At least since the beginning of January, Abdul Rehman Geelani
was held in solitary confinement in Tihar Jail, New Delhi; he has not been
allowed to leave his cell to walk in the open air and has been denied other
facilities that other detainees are permitted to enjoy. An application to the
POTA judge was filed in early February and eventually most of these restrictions
were withdrawn.

Moreover, Abdul Rehman Geelani had expressed fears in the
early weeks of his detention that he may be attacked or killed in jail with the
connivance of prison authorities; while in Tihar Jail he had observed other
Muslim prisoners being ill-treated solely on account of their religious
background. Apparently, these fears have now reduced since Geelani has ceased to
be held in solitary confinement.

4. Application of POTA

Human rights groups in India and international human rights
bodies, including Amnesty International, have on a number of occasions raised
concern about defects of POTA;* several petitions challenging
POTA are pending in the Indian Supreme Court. It has been shown to violate many
of the human rights guarantees relating to the rights to liberty and security of
the person, to freedom from torture, to a fair trial and to expression,
association and redress contained in the Constitution of India, Indian statutory
law and international human rights commitments undertaken by India, for instance
its ratification of the ICCPR.

Amnesty International is particularly concerned that several
provisions of POTA undermine the principle of presumption of innocence: Section
4, under which Geelani is charged, raises an irrebuttable presumption that if a
person is found in unauthorised possession of explosive substances, such
possession is automatically connected with "terrorist acts" and the
offence, normally punishable under the Explosive Substances Act, becomes triable
under the POTA's special provisions, where few legal safeguards and heavier
sentences upon conviction apply. However, the organization believes that the
possession of a weapon or of an explosive substance cannot imply the involvement
of its owner in an offence unless this is proved by the prosecution. Similarly,
section 49(6) and (7) of the Act provides that no person accused of an offence
should be released on bail unless the public prosecutor has been given an
opportunity to oppose the application for such release and that where the public
prosecutor opposes bail, it should not be granted unless "the court is
satisfied that there are grounds for believing that the accused is not guilty of
committing such offence". The granting of bail thus becomes effectively
dependant on a prima facie assessment of guilt or innocence by the court
and the failure of a court to grant bail can be considered as an assumption of
guilt. This happens at a stage in the proceedings when the prosecution are not
obliged to disclose evidence against the accused. Amnesty International believes
that all courts must conduct trials without previously having formed an opinion
on the guilt or innocence of the accused.

Amnesty International is concerned that in POTA the act of
"inviting support" for a "terrorist organization" is made an
offence, without a definition of what this act may include. The organization
notes that "inviting support" may not involve any encouragement to
commit violent and criminal acts. On the contrary it might include the peaceful,
private discussion of political ideas. The Act therefore is potentially leading
to violations of the rights of freedom of expression established in article 19
of the ICCPR. Amnesty International believes that, in the interest of legal
certainty, prohibited acts must be recognizably criminal offences - so that
everyone can modify their behaviour or know whether this behaviour is lawful or
not - and avoid the application of criminal laws from being extended by analogy.

Amnesty International believes that section 32 of POTA,
providing for confessions made to a police officer to be admissible in trial,
subverts standards for assessing evidence set by Indian statutory law and upheld
in the Indian Evidence Act, which clearly excludes such confessions from
evidence at trial. Expressing its view on an identical section contained in the
Prevention of Terrorism Bill, 2000, the NHRC stated that:

"this would increase the possibility of coercion and
torture in securing confessions and thus be inconsistent with Article 14(3) (f)
of the ICCPR which requires that everyone shall be entitled to the guarantee of
not being compelled to testify against himself or to confess guilt."

Other sections of POTA legislate the interference of the
executive in judicial matters: Section 23(3) of the Act, for example, provides
that determination of issues relating to the jurisdiction of Special Courts is
decided by the executive and not by law or the judiciary. The provision for
"Review Committees" contained in Section 60 does not ensure sufficient
independent supervision of the procedures established by the Act as envisaged in
international standards. The Review Committees, in fact, make decisions about
the denotification of A terrorist
organizations@ and the interception of
communications, which have a bearing on assessments of guilt or innocence and
the admissibility of evidence and thus should be subject to all the guarantees
of independence applicable to the judiciary. Section 60 does not contain
detailed guidelines concerning the operation of these committees. It appears
that they are made up of personnel appointed by the executive and that there is
no mention of the right of the detainee to make a representation before a Review
Committee. In addition, there are no provisions setting out the powers of such
Committees, including for instance whether or not they would have the power to
review whether the application of the Act is justified in terms of the
objectives or lawful in terms of procedure. No periodicity is established for
their reviews and it is not clear whether they would have the powers to
discontinue a case if they consider it necessary.

Principle 3 of the Basic Principles on the Independence of
the Judiciary states that "The judiciary shall have jurisdiction over all
issues of a judicial nature and shall have exclusive authority to decide whether
an issue submitted for its decision is within its competence as defined by
law."

Amnesty International believes that anti-terrorist
legislation such as POTA has undermined the safeguards which India, as a state
party to the ICCPR, is obliged to uphold, thus encouraging law enforcement
officials and those working in the criminal justice system to assume that legal
safeguards and norms of judicial procedures may be suspended in the pursuit of >
anti-terrorism= . Amnesty
International calls on the Government of India to strictly adhere to its own
constitutional human rights safeguards and international human rights law and
standards. They require that all people against whom there is a suspicion of
involvement in criminal activities be treated strictly in accordance with law.
To discriminate against those suspected of >
terrorist= offences by subjecting them
to custodial violence and denying them their right to a fair trial, violates the
principle of equality of law and equal protection of law which are fundamental
rights recognized in the Constitution of India.

Amnesty International urges the Government of India to take
all possible care to ensure a fair trial to the accused in the present case and
to investigate, promptly, effectively, independently and impartially, the
violations of rights of these four accused which appear to have taken place in
the pre-trial period, and particularly the allegation that Abdul Rehman Geelani
was tortured in police custody. Amnesty International also urges once again that
the Government of India consider bringing POTA into conformity with
international standards for fair trial.

I look forward to receiving your response to the issues
raised in this letter. We intend to make this letter publicly available.

Abdul Rehman Geelani, a 32-year-old Kashmiri from Baramulla
in Jammu and Kashmir and a lecturer of Arabic at a New Delhi college since 1997,
was arrested on 14 December 2001 at around 1.15 p.m. at a bus stop in New Delhi,
one day after the bomb attack on the Indian parliament which killed several
people. Police in plain clothes took Geelani away in a van in which they
allegedly abused and threatened him with dire consequences if he did not confess
to his involvement in the bomb attack. He was then taken to a farm house where
he was allegedly beaten and hung upside down in the presence of some named
senior police officers to force him to confess to the crime. Geelani insisted
throughout that he had no connection with the bomb blast. He was, however,
forced to sign some blank pages.

Geelani was held in the farm house up to the morning of 16
December 2001 when police brought him before a judge at her residence where
police obtained remand of Geelani. He was then taken to the Lodhi Road police
station where his wife, two children (10 and 5 years old) and younger brother
continued to be held without charges for three days.

At the end of the police remand period, Geelani was
transferred to jail custody. In Tihar Jail, New Delhi, he was initially held in
a cell which he shared with other accused in Ward No 8 but after some three
weeks he was transferred to a cell in another ward where he was held in solitary
confinement; in late January he was returned to ward No 8 but continued to be
held in solitary confinement in a cell measuring about 10 feet by 7 feet. He was
not allowed to leave his cell and come into the open air as other detainees are
allowed to do, could not make use of the canteen facility, was not given fruits
that his family brought to the prison and could not use the prison library. An
application filed with the POTA court in early February led to his being
transferred to a regular cell and other restrictions were withdrawn as well.

Geelani was implicated in First Information Report (FIR) No
417 of 13 December 2001 which lists offences under sections 121, 121A, 122, 124,
120B, 186, 353, 332, 333, 302, 307 of the Indian Penal Code (IPC), sections 25
and 27 of the Arms Act and sections 3, 4, 5 and 6 of the Explosive Substances
Act for allegedly conspiring to attack the Indian parliament. The FIR did not
mention any names of suspects. The other accused arrested are Mohammad Afzal,
Shaukat Hussain and his wife Najot Sandhu who at the time of arrest was seven or
eight months pregnant and gave birth in jail after being denied bail. She
appears to have been charged with the range of offences solely because she is
the wife of another accused. All the four accused come originally from Jammu and
Kashmir.

According to the details contained in the charge sheet, on 19
December 2001, police added charges of >
terrorism= under sections 3
[commission of terrorist act], 4 [possession of arms], 5 [enhanced penalty], 20
[membership in a terrorist organization], 21 [support for a terrorist
organization], 22 [fundraising for a terrorist organization] of the Prevention
of Terrorism Ordinance, 2001 (POTO, now POTA).

On 14 May 2002, police submitted the charge sheet. The only
evidence against Geelani mentioned in the charge sheet is that of his telephone
number was found on the mobile phone of the main accused and in a recorded phone
conversation on 14 December, before his arrest, Geelani is reported to have
commented positively on the attack on parliament.

Geelani= s lawyer
showed the charge sheet to his client on 20 May 2002; Geelani then pointed out
several inaccuracies which were summarized in an application submitted to the
Additional Sessions Judge, Delhi, on 31 May 2002 with the request to clarify the
discrepancies in the charge sheet before framing charges. Its main points are:

-- The charge sheet states that Geelani did not make any
statement before the Deputy Commissioner of Police on 21 December 2001 and
signed a paper to that effect on the same date; that Geelani was brought before
the Additional Chief Metropolitan Magistrate (ACMM) on 22 December 2001alone,
without police personnel being present and that he stated before the ACMM that
he had not been tortured to make his statement before police and had no
complaint against the police officer. Geelani pointed out that in fact, all the
four accused were brought early in the morning of 22 December 2001 to the ACMM
court; while still in police custody in a police van outside the court, a named
inspector forced Geelani to write and sign the statement as per the dictation of
police. The four accused were then taken together to the ACMM who asked the
police inspector present if their statements had been recorded; none of the
accused persons who were brought in handcuffs before the magistrate, were given
an opportunity to make any statement nor were they asked if they had been
tortured.

-- One of the other accused, Mohammad Afzal, stated at the
press conference that Geelani had not been involved in the commission of the
offences for which the four persons are being held. This statement was
arbitrarily not recorded in the charge sheet

-- The date of arrest was recorded in the charge sheet as 15
December 2001 whereas Geelani was taken into custody and held in an undeclared
place of detention on 14 December 2001.

This application was placed on record. On 4 June 2002 the
charges were framed; some further charges were added; these include charges
under section 123 IPC against Najot Sandhu which makes it an offence for a
person who has knowledge of a planned criminal offence not to inform relevant
authorities.

* See: India: The
Prevention of Terrorism Bill 2000: Past abuses revisited? AI Index: ASA
20/22/00, June 2000. Following the lapse of the Terrorist and Disruptive
Activities (Prevention) Act, 1987 (TADA) in 1995, the Government of India in
1999 requested the Law Commission to A
undertake a fresh examination of the issue of a suitable legislation for
combatting terrorism and other anti-national activities@
in response to which the Law Commission in April 2000 presented a draft
legislation, the Prevention of Terrorism Bill 2000. Civil liberty groups
criticised the bill as facilitating violations of numerous human rights which
the Government of India is obligated to safeguard. In the wake of the attacks in
Washington and New York on 11 September 2001, and a US-led >
war on terrorism= , the Indian Union
cabinet on 15 October 2001 approved a new Ordinance, the Prevention of Terrorism
Ordinance (POTO) which gives substantial powers to police and executive
officials in the > fight against
terrorism= . POTO was signed by the
President of India on 24 October 2001 and came into force at once. (See: India:
Briefing on the Prevention of Terrorism Ordinance, AI Index: ASA
20/049/2001, November 2001) Civil society at large and human rights and civil
liberties organizations, minority groups and political parties had not been
consulted before the promulgation of the Ordinance but expressed their
opposition to it. The National Human Rights Commission, too, criticised the
Ordinance and said that existing legislation, if properly implemented, was
sufficient to combat all kinds of >
terrorist= activities and that there
was no need for an additional law. On 30 December 2001, the Ordinance was
repromulgated and on 26 March 2002, the Indian parliament passed the
corresponding bill, which contained only minor changes, which came into effect
at once. Scores of cases have since then been brought under the Prevention of
Terrorism Act, 2002 (POTA), the majority against Kashmiris.

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